Potential deportation can be factor in federal sentencing.

Byline: Barry Bridges

Consistent with a trial court's wide discretion to "custom-tailor an appropriate sentence" using a "flexible, case-by-case approach," a three-judge panel of the 1st U.S. Circuit Court of Appeals has joined with at least two other circuits in holding that a defendant's potential future deportation is a factor that may be considered in his sentencing.

"[A] sentencing court has the discretion, in an appropriate case, to weigh the possibility of future deportation when mulling the [18 U.S.C.] section 3553(a) factors in an effort to fashion a condign sentence," Judge Bruce M. Selya wrote for the panel in resolving the issue of first impression.

As relevant to sentencing, Selya noted that future threats to the community "might conceivably be mitigated" when a defendant is deported upon his release from prison.

However, the 1st Circuit determined in the case at hand that U.S. District Court Judge John A. Woodcock Jr. in Maine made no error in crafting the sentence of defendant-appellant Brent Hercules for drug charges.

Woodcock had declined to consider the defendant's request for a downward variance, finding there was "uncertainty" surrounding the question of whether he would be deported.

"Given the substantial possibility of shifting immigration policies and fluctuating enforcement priorities during the appellant's lengthy 87-month incarcerative term, the district court's determination that [his] future deportation was not a matter of absolute certainty was a reasonable assessment of the circumstances," Selya wrote.

The 16-page decision is United States v. Hercules, Lawyers Weekly No. 01-002-20. The full text of the ruling can be found here.

'Foregone conclusion'?

Defendant Brent Hercules' appellate counsel, Angela G. Lehman, said the holding illustrates that it "behooves trial counsel to check the relevant statutes" in such cases.

"In reading the record, it appeared to me that the trial judge wasn't provided with the immigration laws. Although trial counsel knew his client would be deported, he did not give the judge any authority," the Somerville attorney said. "That may have made a difference in this case."

Lehman added that the government kept referring to "potential deportation," which in her view was disingenuous.

"They know what ICE is doing, and it's not 'potential,'" Lehman said. "Under the statutes, aggravated felonies result in presumptive mandatory removals. That statutory scheme has been around since at least...